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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

In his inaugural lecture on 21 February 2024 at the University of the Free State (UFS), Prof Bradley Smith explored the complexities of trust misuse in the context of property disputes during divorce proceedings. Prof Smith is an Extraordinary Professor at the UFS Faculty of Law. Drawing on two decades of judicial evolution in the Supreme Court of Appeal (SCA), Prof Smith highlighted the inconsistencies in the SCA’s treatment of this issue that impedes attempts to curb “divorce planning” by way of a trust and proposed solutions to address them.

One of the core issues he identified is the abuse of trusts, where assets are placed within a family trust to diminish a spouse’s personal estate value while treating the trust property as personal property for personal gain. This is often done in an attempt to evade the financial consequences of divorce. Prof Smith explained that this practice undermines the essence of trust law and that the inconsistent approaches by our courts exacerbate the challenges in dividing property during divorce proceedings in a manner that respects the spouses’ matrimonial property regime.

Navigating challenges: reflections on research and its importance

Prof Smith’s proposal revolves around the development of a consolidated test for piercing the veneer of an abused trust, aiming to enhance legal certainty. He emphasised the necessity of a unified approach. “Utilising this test will ensure uniformity because of its applicability to all marriages out of community of property, irrespective of whether the accrual system is involved,” he said.

His meticulous examination of conflicting judgments was praised by Dr Brand Claassen, head of the Department of Private Law, who described it as “the work of a master craftsman”. Retired Judge of Appeal, Eric Leach, also highlighted its critical importance in clarifying complex legal issues for the public good.

“It is of critical importance and in the public interest for judicial decisions, particularly those of higher courts such as the Supreme Court of Appeal and Constitutional Court, to be subjected to careful and considered analysis and, if needs be, criticism. Prof Smith’s inaugural lecture on combating trust form abuse in the context of matrimonial property claims at divorce, in which he carefully considered and analysed the conflict between several Supreme Court of Appeal judgments, was a valuable and important study on the issue,” said Judge Leach. He added that he hoped Prof Smith’s research would be considered by the SCA in future.

Future directions: advancing discourse and sound legal theory

Looking ahead, Prof Smith envisions further research into the applicability of the consolidated test to marriages in community of property, aiming to address remaining uncertainties that lie at the intersection of matrimonial property and trust law. He emphasised the importance of countering the prevailing “catch-me-if-you-can” attitude in divorce matters, advocating for proactive measures to uphold fairness and justice in matrimonial property disputes.

In conclusion, Prof Smith’s inaugural lecture provided valuable insights into combating trust form abuse within the context of matrimonial property claims at divorce. His proposed solutions and ongoing research efforts signify a commitment to advancing discourse on trust law theory and practice, with the ultimate aim of a sound judicial approach that serves the needs of South African society.

News Archive

Launch of the Africa office of the IIDE

2006-05-25

Attending the launch of the Africa office of the IIDE were from the left Prof Sytse Strijbos (Chairperson of IIDE Europe), Rev Kiepie Jaftha (Chairperson of the IIDE in Africa’s Board of Directors and Chief Director: Community Service at the UFS) and Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS).

Attending the launch were from the left Prof Lucius Botes (Director: Centre of Development Support at the UFS), Dr Samuel Kareithi (Head: Community Development at the Cornerstone Christian College, Cape Town), Rev Kiepie Jaftha (Chairperson of the IIDE in Africa’s Board of Directors and Chief Director: Community Service at the UFS), Prof Sytse Strijbos (Chairperson of IIDE Europe) and Dr Ezekiel Moraka (Vice-Rector: Student Affairs at the UFS).

Africa office of IIDE launched on UFS main campus

The Africa office of the International Institute for Development and Ethics (IIDE) was today (26 May 2006) launched on the Main Campus of the University of the Free State (UFS) in Bloemfontein.

“The IIDE specialises in the studying and research of general questions of developmental theory and practices and provides services and support in education, strategic planning, policy formulation, advocacy and capacity building of development agencies,” said Rev Kiepie Jaftha, Chairperson of the IIDE in Africa’s Board of Directors and Chief Director: Community Service at the UFS.

According to Rev Jaftha the IIDE in Africa will focus on the conceptual and normative aspects of developmental processes in Sub-Saharan Africa. “We want to foster local and international partnerships with various relevant role-players in civil society, the private sector and public sector in the SACD region and later expand our operations to the rest of Africa,” said Rev Jaftha.

The IIDE in Africa cooperates with a similar foundation in Europe, functioning as the IIDE Europe. This institute was founded in 2003 and its head office is situated in the Netherlands. The UFS is a funder of the IIDE in Africa together with the Paul Foundation and private sponsors from the Netherlands.

“We have already started with various projects which are in various stages of implementation,” said Rev Jaftha. Some of these projects include, among others, the broadening of the master’s degree in Christian Studies of Science and Society (MACSSS) which is currently housed at the Vrije Universiteit in Amsterdam to tertiary institutions in South Africa such as the UFS, the University of Stellenbosch and the Potchefstroom Campus of the Northwest University.

“Another project is an investigation into the possibility of initiating a broad development initiative in the poverty stricken Qwaqwa area. This initiative will attempt to concentrate on issues like the training and empowerment of prospective entrepreneurs in the region, the identification of prospective entrepreneurs for the rendering of development support and the monitoring of the impact of information and communication technology on local communities during the implementation of sustainable development initiatives,” said Rev Jaftha.

“The establishment of the Africa office of the IIDE on the UFS Main Campus is an indication of one of the aims of the UFS to play a role in South Africa and Africa. It also signifies our aim to contribute meaningfully to research and development and to establish links between the academe and practice,” said Rev Jaftha.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
26 May 2006

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